W.P. Nos. 5411, 1510, 1048, 3385, 5402, 5403, 12702 to 12705, 12724 to 12727, 21759, 26865, and 4123 of 2016, W.M.P. Nos. 4718, 1287, 6672, 10724, 808, 6671, 10723, 2775, 47081, 4709, 11091 to 11095, 11097 to 11101, 11124 to 11134, 18611, 23704, 23075 and 35199 of 2016. Case: M. Ramani and Ors. Vs Tamilnadu Generation and Distribution Corporation and Ors.. High Court of Madras (India)
| Case Number | W.P. Nos. 5411, 1510, 1048, 3385, 5402, 5403, 12702 to 12705, 12724 to 12727, 21759, 26865, and 4123 of 2016, W.M.P. Nos. 4718, 1287, 6672, 10724, 808, 6671, 10723, 2775, 47081, 4709, 11091 to 11095, 11097 to 11101, 11124 to 11134, 18611, 23704, 23075 and 35199 of 2016 |
| Counsel | For Appellant: V. Chinnasamy, Adv. and For Respondents: K. Venkataramani, Additional Advocate General assisted by R. Varalakshmi, Adv. |
| Judges | T.S. Sivagnanam, J. |
| Issue | Apprentices Act, 1961 - Sections 22, 22(1) |
| Judgement Date | January 25, 2017 |
| Court | High Court of Madras (India) |
Order:
T.S. Sivagnanam, J.
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Since the relief sought for in all these writ petitions are identical, they were heard together and are disposed of by this common order. For the purpose of disposing the present batch of cases, W.P. No. 1510 of 2016 is taken as a lead case.
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The petitioners, who are 51 in number, have completed their Apprenticeship training in the respondent corporation viz. Tamil Nadu Generation and Distribution Corporation, and they seek for a writ of declaration to declare the proceedings of the first respondent dated 10.12.2015 and notification dated 28.12.2015 requiring the petitioners, who worked as Apprentices in the first respondent, to undergo written examination as being illegal and to direct the respondents 1 and 2 to dispense with the written examination for the petitioners for the ensuing direct recruitments to the post of Assistant Engineer (Electrical), Assistant Engineer (Mechanical) and Assistant Engineer (Civil) and also to direct the respondents 1 and 2 to formulate a scheme for absorbing the Ex-apprentices as per the amended provisions of Section 22(1) of the Apprentices Act, 1961 Act (herein after referred to as "the Act"). In this batch, one set of cases have been filed by Diploma Holders viz., W.P. Nos. 12702, 12705 and 12724 to 12727 of 2016 and the only distinction is that they are all Diploma Holders, whereas, the other writ petitioners are B.E. Engineering graduates.
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The case of the petitioners is that under the provisions of the Act, every year TANGEDCO recruits Engineering Graduates/Diploma Holders as apprentices to undergo apprenticeship training for a period of one year and on successful completion of training, a certificate would be issued. The petitioners, on securing their Engineering Degree/Diploma enrolled their names with the Board of Apprenticeship Training, who in turn sponsored the name of the petitioners to the TANGEDCO for being trained as apprentices.
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It is stated that the method of selection is by a Committee of three seniors officials of TANGEDCO, who verify the certificate of the petitioners/candidates, who have been sponsored by the Board of Apprenticeship Training and after taking oral interview, they are selected to undergo apprentices training. Thus the endeavour of the petitioner is to state that there is a process of selection of apprentices and it is not mechanically filled up based upon the list forwarded by the Board of Apprenticeship Training. It is submitted that Section 22 of the Act is very crucial, which had undergone an amendment in 2014, which was published in the Gazette of India dated 18.12.2014. According to the petitioners, prior to the amendment, the provision of Section 22 of the Act did not guarantee or provide for any right to the apprentices for securing employment in the relevant establishment. However, TANGEDCO was recruiting apprentices whenever vacancies arises in various posts notwithstanding the fact that there is no obligation under the Act whenever regular vacancies is notified for recruitments. It is further submitted that the TANGEDCO was following a pattern of calling for names in the ratio of 1:5 from Employment Exchange and separate notification will be issued to Ex-apprentices simultaneously. It is the submission that though there is no written policy for recruitment of Ex-apprentices in the 1st respondent establishment, the 1st respondent was giving preference for ex-apprentices when regular vacancies are filled up. The main grievance of the trained apprentice is that the TANGEDCO has taken a decision to conduct a written examination for recruitment by referring to and stating that it is in implementation of the judgment of the Honourable Division Bench of this Court in W.A. No. 1027 of 2013 dated 09.06.2014. The petitioners have no grievance in TANGEDCO adopting such procedure by calling for applications from the open market and to require those open market candidates to undergo written examination. But would state that such pattern of selection cannot be made applicable to Ex-apprentices as they have acquired a right for consideration of appointment as per the amended provisions of Section 22 of the Act.
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By referring to the amended Section 22(1) of the Act, it is submitted that it creates a mandatory obligation on the employer to formulate or evolve a policy or scheme to recruit the apprentices who have completed the period of apprenticeship training in the establishment and the word used is "shall" and therefore, it is mandatory.
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Referring to the decision of the Hon'ble Supreme Court in UP State Road Transport Corporation and another v. U.P. Parivahan Nigam Shishuksh Berozgar Sangh and others reported in (1995) 2 SCC 1, it is submitted that guidelines were laid down by the Hon'ble Supreme Court in the matter of considering the trained apprentices for employment. In the light of the said decision, trained apprentices like the petitioners cannot be called upon to undergo a written examination. Reference was also made similar regulation framed by the Railway Board and Bharat Heavy Electricals Limited. Thus the challenge to the impugned notification is by contending that the TANGEDCO did not formulate the policy for recruitment as amended Section 22(1) of the Act, till date and calling for applications from the open market is arbitratory and illegal. However, insisting upon the petitioners to apply along with the candidates from the open market is further arbitratory and against the spirit of amended section 22 of the Act. Placing heavy reliance on the judgment in the case of UP Transport Corporation (supra) it is reiterated that apprentices, who have completed one year training, shall not be required to undergo written examination and therefore, the impugned notification to the said extent requires to be set aside.
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It is argued by the learned Senior Counsel appearing for the petitioners that the apprentices are only opposing the move of the respondents in conducting a written examination and compelling the petitioners to undergo written examination, but are ready and willing to subject themselves to viva-voce test. The learned counsel referred to the Government Order in G.O. Ms. No. 44 Labour and Employment dated 11.03.2015, and submitted that the Government issued directions to implement the judgment of the Hon'ble Division Bench in W.A. No. 1027/2013 and by referring to the said Government Order, the respondent issued the impugned proceedings dated 10.12.2015, and directed that selection of all category shall be made on merit viz., 85%...
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